PROBATE & ESTATE ADMINISTRATION
Medford, New Jersey, Probate and Estate Administration Attorney, Gary F. Woodend
Getting Help.
It is important to seek competent legal advice upon the death of a loved one. An experienced attorney can help you sort through the process and help with the tasks ahead, so that you can concentrate on taking care of family matters during this very difficult time.
What is probate?
Probate is a legal proceeding to properly account for and administer property owned by someone who has died. It also involves paying the outstanding and final bills and expenses and taxes of the estate. Lastly, it involves making certain that whatever is left of the estate is distributed to the proper beneficiaries in accordance with the decedent's will or according to New Jersey law. A probate proceeding takes place in the probate court of the county where the deceased property owner most recently was domiciled, not where the person died. If the deceased also owned real estate in another state, additional proceedings may be necessary in that state.
What property is included in probate?
It is easier to explain what property is NOT included in probate. Generally, it is property with a named beneficiary, such as life insurance, annuities, pensions, IRA’s, etc. Property held as joint tenants with rights of survivorship, such as a husband and wife would own a home, or bank accounts in joint names, do not need to be probated.
Why is probate necessary?
Probate is necessary to give the executor or administrator the necessary legal authority to handle the decedent's final affairs, sell assets, and pay bills on behalf of the estate, without incurring any personal liability.
What does probate involve?
Probating an estate involves applying to the County Surrogate for letters of administration. If there is a will, this person is called the executor. If there is no will, this person is called the administrator. The executor or administrator may be an individual, a bank or a trust company.
The executor or administrator takes care of the following tasks:
- Gathering up and accounting for the property of the decedent;
- Receiving payments due the estate, including interest, dividends
and other income;
- Collecting debts, claims and notes due the decedent;
- Determining the names, ages and addresses of all beneficiaries.
- Investigating the validity of all claims against the estate and
paying all outstanding obligations including federal, state and local
estate and income taxes;
- Hiring an accountant to file final tax returns, and filing estate
tax returns when required;
- Distributing the remaining assets of the estate to the heirs.
How long does probate take?
Probate generally takes about one year to complete. This is primarily driven by the fact that claims against the estate may be made up to nine months from the date of death. However, if an New Jersey inheritance or a federal estate tax return is required, the administration of the estate could easily take more than a year.
Do I need a will?
A properly drawn will assures that, upon your death, your property will be distributed as you intended, and the person you trust to handle your affairs is appointed to do so. If you have minor children, the will is also the mechanism for choosing their guardian, and provides for a trust to ensure that there bequest is used for the upbringing and education, rather than wasted. A will also can dispense with the requirement of a surety bond, which an administrator might otherwise have to pay.
How do I avoid Probate?
It is virtually impossible to avoid probate completely. Many seminars are given and many books are written on how to avoid probate. Techniques involve gifting, re-titling of assets, living trusts, etc. In New Jersey, the probate procedure is relatively simple and inexpensive. Absent special circumstances, I generally do not recommend going to the added expense and trouble of trying to avoid probate in New Jersey.
Common myths about probate.
Rumors about probate are common and often supported by misinformation disseminated by unscrupulous people trying to sell “How to avoid probate” gimmicks. Some of these myths include:
Probate is expensive: False. The filing fees are minimal. The most significant costs involve executor commissions which, for the most part, are identical to the commissions paid on trusts designed to avoid probate. Probate requires the payment of inheritance and estate taxes: There may be inheritance and estate taxes, but they have nothing to do with probate and would be due even probate were avoided.
Probate takes a long time: I suspect what the real concern is, the beneficiaries have to wait too long to get their money. Well, it does take time to get through probate. But there are good reasons for it. New Jersey law allows creditors nine months to file a claim against a decedent’s estate. Thus, even if probate were avoided, it would be foolhardy to distribute any assets of the estate until that nine month claim-filing period has lapsed and everyone was certain that all bills have been paid. I have seen cases where an anesthesiologists bill wasn’t received for a whole year after the operation. In addition, there may be income taxes or inheritance or estate taxes to pay. The decedent’s final income tax returns need to be filed by April 15th of the year following the date of death. There may be income, inheritance and/or estate taxes to be paid. It is much easier to calculate and pay them before distributing assets to beneficiaries, thereby avoiding having to later try to recover from the beneficiaries assets that have already been distributed, and possibly spent.
Resources Available.
The office responsible for probating will is the County Surrogate. The website addresses for the offices we most commonly deal with are set forth below.
Burlington County:
www.co.burlington.nj.us/surrogate
Ocean County:
www.oceancountygov.com/surrogat/office.htm
Camden County: www.camdencounty.com/government/offices/surrogate/index.html
